Opinion
Civ. No. 346-68.
December 4, 1969.
Burlingham, Underwood, Wright, White Lord, New York City, Bird Bird, San Juan, P.R., for defendant.
González Jr., González Oliver, Blanco Lugo Moran, Santurce, P.R., Victor House, San Juan, P.R., for plaintiff.
ORDER
This action presently before the Court upon the Motion of defendant The London Steamship Owners' Mutual Insurance Association Limited to Strike plaintiff's demand for trial by jury. Said motion came on for hearing on July 19, 1968 and the parties were granted 30 days to file simultaneous memoranda after which the matter would stand submitted. The requested briefs in support and opposition to the trial by jury demand were not filed until November 28, 1969.
Having considered the arguments set forth therein, the allegations contained in the complaint and otherwise fully advised in the premises, the Court concludes that this action arises out of a maritime tort. The complaint has been labelled "In Tort, Including Maritime Tort." The Court's jurisdiction is founded on diversity and jurisdictional amount, and alternatively, on the admiralty and maritime nature of the claim. There is no doubt that plaintiff, through the allegations of its complaint has clearly chosen to assert and identify its claim for relief as an admiralty or maritime claim within the meaning of Rule 9(h), Federal Rules of Civil Procedure. Having identified it as such, under federal Rule 38(e) plaintiff does not have the right to trial by jury.
Therefore, it is hereby ordered that the Motion of defendant insurer to Strike plaintiff's demand for jury trial filed on July 12, 1968 be and the same is hereby granted.